Kashoro v Musyoka (Civil Suit E018 of 2025) [2025] KEMC 366 (KLR)

Defendant’s Case 4. The defendant on her part maintains that she has single handedly provided for the issues of the said union. It was her position that the plaintifi however never paid any dowry and that since the year 2007 when they separated the plaintifi has never provided for nor paid schools fees for the said issues. The defendant invites the court to dismiss the plaintifi’s case with costs but allow her counter claim. The defendant also avers that the plaintifi also pays the costs of preservation of the deceased body which is lying at the interested party’s facility. Evidence 5. PW1 - Khaji Kashoro Mwakuni the plaintifi herein adopted his witness statement dated 17/3/2025 as his testimony in chief. He also produced his national identity card and dowry agreement as exhibits. It was his testimony that the deceased is his son and that the defendant is his wife. He maintained that he got married to the defendant customarily and that the used to pay school fees for the deceased and provide upkeep for his kids. Further, that he used to give money to the defendant for upkeep and that his children used to visit him and thereafter go back to the defendant. 6. In cross examination, it was his testimony that he used to give the defendant money in cash and also send her money via Mpesa. He further answered that he had not produced school fees receipts neither had he provided any Mpesa statements. He also stated that he paid dowry for the defendant in the year 2002 and that a dowry agreement was prepared on 28/12/2002. Finally, that he used to provide for the deceased and also used to give money to the defendant to pay for the deceased’s medical expenses though he did not have proof of the same. 7. DW1 – Zainab Sera Musyoka the defendant adopted her witness statement dated 17/3/2025 as her testimony in chief. She further relied on the contents of her defence and counter claim. It was her position that she be given the remains of the deceased as the plaintifi never provided for the deceased. It was her position that she was only in a relationship with the plaintifi from the year 1999 till the year 2007 when they parted ways. She denied having been married to the plaintifi as the plaintifi never paid her dowry and no marriage ceremony was conducted. 8. The defendant further stated that the plaintifi never provided for the children of the said union, never paid school fees, never gave her money in cash nor via Mpesa. It was also her evidence that the plaintifi never provided money for treatment of the deceased. In summary it was her position that the plaintifi never provided for the children since their separation. 9. In conclusion, the defendant produced her documents as contained in her list of documents as exhibits 1- 6 and prayed that she given the remains of the deceased so that she can burry them. Upon cross examination she stated that she did not have evidence of payment of treatment expenses for the deceased and that the school fees receipts she had produced did not capture her name. In conclusion, she answered that they both used to provide for their children before they separated and that the plaintifi should pay the body storage or preservation charges. 10. DW2 – Saidi Muthoka Junali the defendant’s cousin adopted the contents of his witness statement dated 17/3/2025 as his testimony in chief. It was his testimony that the plaintifi and the defendant had a relationship and that they separated in the year 2007 and that the plaintifi never gave any support to the defendant after the said separation. He further stated that the plaintifi and his parents came to the defendant’s home to inquire about the Kamba marriage customs but they never paid dowry and that the plaintifi only came back to the said home after the demise of the deceased. https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/366/eng@2025-05-09 2

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11. In cross examination, he stated that the plaintifi never married the defendant. Further that the defendant used to pay school fees for the children on her own. Finally, that the defendant has the right to bury the deceased as the plaintifi never complied with Kamba customs regarding marriage and that the body attracts storage charges of Kshs. 500/= per day. 12. DW3 – Gideon Maluki Mutisya informed the court that he is a Kamba elder and adopted his witness statement dated 17/3/2025 as his testimony in chief. He took the court through the process of marriage under the Kamba customs including the payment of 5 goats (ntheo) by the groom. Further that a person has to pay the said 5 goats so as to claim ownership of the children of a relationship and if the same is not paid then the children of the said union are exclusively the mother’s. 13. It was position, that the plaintifi and his parents visited the defendant’s home on 28/12/2000 however they never paid any dowry. In cross examination it was his position that the plaintifi did not comply with Kamba customs as regards marriage but that he is the father to the deceased. 14. DW4 – Joseph Ambari Karu a Mijikenda elder adopted his witness statement dated 17/3/2025 as his testimony in chief. He explained the process of how a marriage is conducted under the Mijikenda customs which include the groom’s parents visiting the bride’s parents with alcohol (kajama). That dowry negotiations are then held after kajama is given. Further, that if kajama is not given then the children of the said union belong to the mother. 15. In conclusion, he stated that the bride’s customs take precedence in matters of marriage and that in this case if the plaintifi did not pay the said 5 goats then the children of the said union belong to the mother. In cross examination, it was his position that the plaintifi did not comply with Kamba customs and that he did not know if the plaintifi used to give money to the defendant for upkeep. 16. DW5 – Fredrick Kamotsu Kaluko a village elder who hails from the same village as the defendant adopted his witness statement dated 17/3/2025 as his testimony in chief. It was his further testimony that the plaintifi and the defendant bore 4 children together. That the parties separated 18 years ago and that the defendant since then has been residing at her parents’ home. It was his position that the deceased was mentally challenged and that he used to assist the defendant in having the deceased get treatment. 17. It was his position that the plaintifi came to claim the body and that Kamba customs were explained to him but he never complied with the same and as such he was not given the body for burial. Finally, that the defendant’s father passed on in the year 2001 and not the year 2002. 18. In cross examination, he stated that the plaintifi is the father of the defendant’s children and that there are no customs that are against the Kenyan law. Analysis and Determination 19. This court has considered the pleadings filed herein and the totality of the evidence on record and the written submissions filed by parties herein. The following issues arise for determination: a. Who will be given the body for burial? b. Who meets the body preservation charges? c. Who bears the costs of the suit? https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/366/eng@2025-05-09 3

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a. Who will be given the body for burial 20. The position in this case is that plaintifi and the defendant are the biological parents to the deceased herein. It did not come out from the opposing parties if the deceased was married or had a spouse or children. The contest herein is therefore between the parents of the deceased who along the way separated and each went his/her own way. Each of them wants the remains of the deceased for burial. The court thus has to consider who between the two parents will be given the body for burial. 21. In the case of SAN V GW (2020) eKLR the court of appeal stated that: “ The law only recognizes the persons who are closest to the deceased to have the right to bury the deceased. Those persons have been identified as the spouse, children, parents and siblings, in that order.” 22. In Adhola v Kudha & 2 others; St. Elizabeth Lwak Mortuary (Interested Party) (Civil Appeal E007 of 2024) [2024] KEHC 8491 (KLR) (12 July 2024) (Judgment). It was held that: “ The case of San VS GW (2020) eKLR further holds that the law only recognizes that persons who are closest to the deceased to have the right to bury the deceased and that those persons may be identified as the spouse, children, parents and siblings in that order, and further that the person claiming the right to bury the deceased must be one who has demonstrated to have been close to him or her during his or her lifetime.” 23. It is clear that parties failed to agree especially with regards to the place of burial as pleaded by the plaintifi in paragraph 7 of the plaint equally as per the testimony in chief of the defendant and the testimony in chief of DW5. This court therefore has to give its decision based on the evidence presented before it. 24. In Dinah Odhiambo Oyier vs. Hellen Achieng & 3 Others High Court Civil Appeal No. 14 of 2017 [2017] eKLR Cherere, J held that where the people who are legally closest to the deceased such as the case herein were the deceased parents: “ have shown that they cannot now agree on that issue, it is desirable and, indeed imperative, in the circumstances of this case, for this court to intervene and direct as to the deceased’s place of burial.” 25. Further, in Virginia Edith Wamboi Otieno vs. Joash Ochieng Ougo & Another Civil Case No. 4873 of 1986 [1987] eKLR Bosire J. held that: “ It is my judgment and so declare that the 1st defendant and also the plaintifi have the right under Luo custom, to bury the deceased and to decide where the burial is to take place. However, because the two have shown that they cannot now agree on that issue, it is desirable and, indeed imperative, in the circumstances of this case for this case, for this court to intervene and direct as to the deceased’s place of burial.” 26. In determining this case the court has to consider which law is applicable in adjudication of burial disputes such as the case herein. https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/366/eng@2025-05-09 4

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27. In George Ooko Okoth v Edith Apiyo Ochieng [2021] eKLR it was held as follows “ The Court of Appeal in the case of SAN v GW [2020] eKLR stated inter alia that in Kenya, to resolve burial disputes, the courts have variously resorted to customary law, common law, marriage law, succession law, human rights law, land law and other bodies of personal law.” 28. Section 3(2) of the Judicature Act which provides as follows:“ The High Court, the Court of Appeal and all subordinate courts shall be guided by African customary law in civil cases in which one or more of the parties is subject to it or afiected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law, and shall decide all such cases according to substantial justice without undue regard to technicalities of procedure and without undue delay.” 29. Customary law is therefore applicable as long as it is not repugnant to justice and morality. The defendant relied on Kamba and Mijikenda customary law and rights as pertaining to marriage and who between the two parents has control over any children involved. 30. It was the position of the plaintifi that the defendant herein is his wife and that they got married in the year 2002 under customary and that they separated in the year 2010. He further stated that he paid dowry and relied on the dowry agreement dated 28/12/2002. The court however notes that the said agreement has not been signed by any person and as such the court is not satisfied that it has any probative value. 31. The defendant on her part also held the position that the plaintifi never paid any dowry but they had cohabited together as friends from the year 1999 till the year 2007 when the plaintifi chased her away. It was however her position that they had 4 children together inclusive of the deceased. 32. The defendant availed elders as her witnesses who took the court through Kamba customs and Mijikenda customs as regards marriage and the rights of parents with regards to the children of such unions. DW3 informed the court that he is a Kamba elder and his position was that the plaintifi never complied with Kamba customary law and customs as regards marriage and as such the defendant thus has exclusive rights to the children of the said union. DW5 a Kamba elder married to a Mijikenda also echoed the same sentiments. DW4 a Mijikenda elder on his part informed the court that if the brides customs as regards marriage are not followed and if dowry is not paid then the children of the said union belong exclusively to the mother. 33. The court takes the opinion that the said witnesses DW3, DW4 and DW5 were availed by the defendant as expert witnesses in matters customary law with regards to Kamba and Mijikenda customs as pertaining marriage and the rights over children. 34. In Nyariba Nyankomba v Mary Bonareri Munge [2010] eKLR the High Court held that: “ Time and again, it has been stated that in cases resting purely on customary law it is absolutely necessary that experts versed in the customs be summoned to testify so as to assist the court reach a fair verdict since the court itself is not well versed in those customs and traditions”. 35. The court however has to be satisfied that the said persons presented as expert witnesses were qualified and their expertise established before they proceeded to testify as expert witnesses. https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/366/eng@2025-05-09 5

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36. In Imbogo v Imbogo (Civil Appeal E030 of 2023) [2023] KEHC 24707 (KLR) (26 October 2023) (Judgment) it was held as follows: “ In the present case I did not see any evidence of “an expert” in Luhya customary law. Indeed, none of the witnesses presented himself as such or were led in evidence to ascertain their expertise in Luhya customary law of marriage. PW3 and PW4 in their written statement stated that it is an abomination to bury the deceased outside his ancestral land. The expertise of these two witnesses in my view was not established. A detailed account of their expertise in Luhya customs ought to have been laid before they could be presented to court as expert witnesses. Custom as stated hereinbefore cannot be assumed.” 37. Further, in Shah & Ano v Shah & others [2003] 1 EA 290 the court held that: “ However, as a rule of practice, a witness should always be qualified in court, before giving his evidence and this is done by asking questions to determine, and failure to properly qualify an expert may result in the exclusion of his evidence” 38. In addition, in Imbogo v Imbogo (Civil Appeal E030 of 2023) [ (supra) the High Court held as follows “ PW3 told the court he was 92 years old but he was never led in evidence to establish his expertise in Luhya customary law of burials. With tremendous respect, the age of a person is not necessarily a refiection of his expertise in the customs and practices of his people. The expertise of PW4 was not also established before giving evidence. Am not satisfied therefore that the requirement that a luhya man must be buried in his ancestral land was proved.” 39. Having gone through the record and evidence presented I am not satisfied that the expertise of DW3, DW4, DW5 was established or qualified before they gave their testimony in matters Kamba and Mijikenda customary law. 40. Secondly, I find that their position that the children of a union where dowry has not been paid are the exclusive property of the mother to be repugnant to justice and morality and inconsistent to our written law which provides that parents have equal rights to their children whether they are married or not. 41. The court thus finds that this is not a case where the court will rely on customary law to make a decision for the reasons given above. I also find that the plaintifi on his part did not also avail any persons as expert witnesses who would assist the court in determining this matter based on customary law. This court will therefore consider other circumstances and evidence in making its decision. 42. In SAN v GW [2020] eKLR it was held as follows “ In burial disputes, the two questions that will always arise are, who has the right to bury the deceased and the place of burial. Customary law has been held to be the applicable personal law regulating burial disputes in Kenya. See Virginia Edith Wamboi Otieno vs. Joash Ochieng Ougo & another No.4), (1987) KLR 407 (the SM case) and Kandie & 2 others vs. Beatrice Jepkemoi Cherogony (2002) 2 KLR 613. But since customary law exists in almost all ethnic groups in Kenya with a homogeneous value system and the customs vary from one ethnic group to another means that the resolution of burial disputes will depend largely on the peculiar circumstances of each case.” https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/366/eng@2025-05-09 6

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43. In this case it did not also come out from the parties if the deceased had a spouse or wife or children so that the court considers their views or opinions as the same would have taken precedence over the opposing positions of the parents herein as stated in In SAN v GW [2020] eKLR( Supra) where it was held that: “ The third aspect of this dispute is that the law only recognizes the persons who are closest to the deceased to have the right to bury the deceased. Those persons have been identified as the spouse, children, parents and siblings, in that order.” 44. The court notes that this is a dispute largely between parents of the deceased. There was also no evidence adduced as to the wishes of the deceased. The court of appeal in SAN v GW [2020] eKLR( Supra) held as follows as regards the wishes of a deceased. “ Apart from these factors, courts have also been unanimous as far as we can tell from decided cases that, both laws, common and customary, have one thing in common, in so far as burial is concerned; that the wishes of the deceased, though not binding, must so far as is possible, be given efiect, so long as those wishes are not contrary to custom or to the general law or policy.” 45. The court having ruled out the applicability of customary law in this case and there being no evidence if the deceased had a spouse or children and also there being no evidence of any wishes of the deceased, the court will now proceed to determine this case based on the legal proximity doctrine. 46. In Imbogo v Imbogo (Civil Appeal E030 of 2023)(supra) the High Court held as follows: “ The decision in Ruth Wanjiru Njoroge v Njeri Njoroge & Anor [2004] where the dispute was between the two widows of the deceased introduced this doctrine in burial disputes; The doctrine of legal proximity is based on the assumption that the decision as to the determination of the place of burial is based upon proof by the parties in the dispute of their proximity to the deceased. Accordingly, the right to bury a dead body can only be conferred to the person who is able to demonstrate the closest proximity to the deceased.” 47. In Ruth Wanjiru Njoroge v Jemimah Njeri Njoroge & another [2004] eKLR the High Court held as follows: “ As I have already stated earlier on, the person, in social context prevailing in this country, who is in the first line of duty in relation to the burial of any deceased person, is the one who is closest to the deceased in legal terms. Generally, the marital union will be found to be the focus of the closest chain of relationships touching on the deceased. And therefore, it is only natural that the one who can prove this fundamental proximity in law to the deceased, has the colour of right of burial, ahead of any other claimant.” 48. The plaintifi informed the court that he has been providing for and maintaining the children of the said union. It was his position that he used to send money to the defendant via Mpesa. He also stated that he used give money in cash to the defendant for the upkeep of the said children, including for school fees and for the treatment of the deceased. The court however finds that there was no evidence presented in court to support the said position. It was also his testimony that the children herein inclusive of the deceased used to visit him at his homes in Mombasa and Chonyi, however the court finds that there was also no evidence to support this position too nor did he avail any other witness to buttress the same. https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/366/eng@2025-05-09 7

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49. In Springboard Capital Limited v Njenga & another (Civil Appeal 14 of 2024) [2024] KEHC 7013 (KLR) (14 June 2024) (Judgment) it was held that: “ It is trite law that he who alleges must prove. Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya, provides that:-Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” 50. On the other hand, the defendant held the position that she has been residing with the deceased herein and also attending to the deceased’s medical needs. The defendant produced the treatment notes for the deceased to support the said position. DW2 equally informed the court that the he resides in the same homestead with the defendant at Masaani village. In his witness statement DW2 stated that the defendant has been taking care of the deceased on her own from the time the deceased was 6 years old and that the deceased was epileptic. 51. DW5 on his part informed the court that when the plaintifi and the defendant separated 18 Years ago the defendant moved back to Masaani village where DW5 also hails from and that the defendant has been residing there together with the children herein including the deceased. The defendant equally produced a letter from the area assistant chief that confirms that the deceased was a resident of the said Masaani village. 52. In Adhola v Kudha & 2 others; St. Elizabeth Lwak Mortuary (Interested Party) (Civil Appeal E007 of 2024) [2024] KEHC 8491 (KLR) (12 July 2024) (Judgment) it was held that : “ The case of San VS GW (2020) eKLR further holds that the law only recognizes that persons who are closest to the deceased to have the right to bury the deceased and that those persons may be identified as the spouse, children, parents and siblings in that order, and further that the person claiming the right to bury the deceased must be one who has demonstrated to have been close to him or her during his or her lifetime.” 53. Having analysed, the evidence on record, the respective cases by the plaintifi and defendant including the counter claim and response thereto. I do find that on a balance of probabilities the defendant has satisfied the court that in terms of legal proximity she was the one closest to the deceased and as such the remains of the deceased shall be released to her for burial at her place of choice. b). Who Meets the Body Preservation Charges? 54. The plaintifi and the defendant are the parents to the deceased. Having considered that and the circumstances of this case, including the applicable body preservation charges and the duration that the body has remained preserved at the interested party’s facility or morgue, I do order hereby order that both the plaintifi and the defendant shall equally share the total charges of preserving the body of the deceased. The said total charges shall be paid to the interested party herein Ambari Funeral Home. c). Who Bears the Costs of the Suit? 55. Section 27 of the Civil Procedure Act provides as follows: “ (1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/366/eng@2025-05-09 8

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what extent such costs are to be paid, and give all the necessary directions for the purposes aforesaid; and the fact that the court has no jurisdiction to try the suit shall be no bar to the exercise of those powers; provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise direct.” 55. Further, Justice (Retired) Kuloba Judicial Hints on Civil Procedure, 2nd Edition, ( Nairobi) Law Africa) 2011, page 94 stated that: “ Costs are {awarded at} the unfettered discretion of the court, subject to such conditions and limitations as may be prescribed and to the provisions of any law for the time being in force, but they must follow the event unless the court has good reason to order otherwise…” 56. The court is of the opinion that this being a family matter essentially between parents of the deceased it will be prudent that each party to bear its own costs, and it is so decreed. Orders. 57. In conclusion therefore, the court makes the following orders: 1. That the defendant, (Sera Musyoka), shall pick the body of the deceased from Ambari Funeral Home for burial at a place of her choice. 2. That the plaintifi (Khaji Kashoro Mwakuni), shall be at liberty to attend the burial. 3. That parties herein shall maintain peace and order during the burial. 4. That the plaintifi and the defendant shall equally share the total body preservation charges and the same to be paid to the Interested Party herein, Ambari Funeral Home. 5. That each party to bear its own costs. It is so ordered. JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY AT KALOLENI THIS 9TH DAY OF MAY 2025. G. M. MOKUA RESIDENT MAGISTRATE In the presence of: Mr. Konde for the Plaintifi. N/A for the Defendant. Miss. Kiongera for the interested party. Ray - Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/366/eng@2025-05-09 9

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